DIMITROV v. BULGARIA - 78441/11 (Judgment (Merits and Just Satisfaction) : Court (Fifth Section Committee)) [2016] ECHR 1040 (24 November 2016)

In the case of Dimitrov v. Bulgaria,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

          Khanlar Hajiyev, President,
          Faris Vehabović,
          Carlo Ranzoni, judges,
and Anne-Marie Dougin, Acting Deputy Section Registrar,

Having deliberated in private on 3 November 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 78441/11) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian national, Mr Anatoli Borisov Dimitrov (“the applicant”), on 14 December 2011.

2. The Bulgarian Government (“the Government”) were represented by their Agent, Mr V. Obretenov, of the Ministry of Justice.

3. On 10 January 2014 the complaint concerning the authorities’ failure to provide to the applicant with a garage in compensation for his father’s expropriated property was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1955 and lives in Sofia.

5. The applicant’s father owned a house with a yard and a garage in Sofia.

6. Pursuant to a decision of the mayor issued on 27 July 1978, the property was expropriated for the purposes of constructing a residential building. The order, based on section 98 (1) of the Territorial and Urban Planning Act (Закон за териториалното и селищно устройство - “the TUPA”), provided that the applicant’s father was to be compensated with a two-room flat and a garage in a building which the municipality planned to construct.

7. In a supplementary decision of 19 February 1979, based on section 100 of the TUPA, the mayor specified the exact location, size and other details in respect of the flat to be provided by way of compensation. As no mention was made of a garage, the applicant’s father applied for judicial review of that decision. In a final judgment of 21 June 1979 the Sofia City Court found in his favour and referred the case back to the administrative authorities with instructions to specify the exact garage to be provided as compensation.

8. In 1982 the flat in question was constructed and handed over to the applicant’s father.

9. After 1992 the applicant’s father filed numerous requests with the municipal authorities asking them to specify the exact garage to be given to him. By a letter of 12 January 2008 the chief architect of Sofia informed him that no buildings with garages earmarked for the purpose of compensation were being constructed at the moment.

10. In 2008 the applicant’s father brought an action for damages under the State and Municipalities Responsibility for Damage Act (Закон за отговорността на държавата и общините за вреди) for unlawful failure on the part of the Sofia municipality to fulfill its obligations to build and provide him with a garage. The action was dismissed in a final judgment of 21 June 2011 of the Supreme Administrative Court, on the grounds that no unlawful failure to act on the part of the authorities had been established.

11. In the meantime, on 7 April 2008 the applicant’s father passed away. The applicant is his only heir.

II. RELEVANT DOMESTIC LAW AND PRACTICE

12. The relevant domestic law and practice have been summarised in the Court’s judgment in the case of Kirilova and Others v. Bulgaria (nos. 42908/98, 44038/98, 44816/98 and 7319/02, §§ 72-79, 9 June 2005).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1

13. The applicant complained that the authorities had failed over a period of many years to provide him with the garage due to him, and that he lacked an effective domestic remedy in that regard.

14. The applicant relied on Article 1 of Protocol No. 1 and Article 13 of the Convention. The Court is of the view that it suffices to examine the complaints solely under Article 1 of Protocol No. 1, which reads:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

15. The Government did not comment on the admissibility and merits of the application.

16. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

17. On the merits, the Court starts by noting that the circumstances of the case are similar to those examined by it in Kirilova and Others, cited above (see also Lazarov v. Bulgaria, no. 21352/02, 22 May 2008; Antonovi v. Bulgaria, no. 20827/02, 1 October 2009; Dichev v. Bulgaria, no. 1355/04, 27 January 2011; and Balezdrovi v. Bulgaria [Committee], no. 36772/06, 20 September 2011).

18. As in these previous cases (see, for example, Kirilova and Others, § 104, and Antonovi, § 28), the Court is of the view that the 1978 expropriation decision stating that the applicant’s father was to receive a garage in compensation (see paragraph 6 above) created an entitlement in his favour, and in respect of the applicant as his heir, which has not been disputed by the authorities and which qualifies as a “possession” within the meaning of Article 1 of Protocol No. 1. The authorities’ failure to provide that garage amounts to interference with the applicant’s rights which falls to be examined under the first sentence of the first paragraph of Article 1 of Protocol No. 1 laying down in general terms the principle of peaceful enjoyment of property (see Kirilova and Others, § 105, and Lazarov, § 28, both cited above).

19. To ascertain whether or not the Bulgarian State has complied with its obligations under Article 1 of Protocol No. 1, the Court must examine whether a fair balance has been struck between the general interest and the applicant’s rights. Very long delays in the payment of compensation, coupled with the authorities’ unwillingness to resolve the problem, are amongst the factors that can upset that balance (see Kirilova and Others, cited above, § 123).

20. The entitlement in favour of the applicant’s father - and of the applicant as his heir − to be provided with a garage arose in 1978, thirty-eight years ago, twenty-four of which fell within the Court’s temporal jurisdiction, namely after 7 September 1992 when the Convention entered into force in respect of Bulgaria. The only explanation provided by the authorities - the Sofia chief architect’s statement in 2008 that no buildings with garages earmarked for compensation were being constructed at that time (see paragraph 9 above) - cannot be a valid justification for such a lengthy delay, seeing that it was the municipal authorities who were under the obligation to construct the garage to be provided to the applicant.

21. In cases like the present one it is incumbent on the authorities to act in good time, and in an appropriate and consistent manner. Instead, as noted above, they adopted a passive attitude, leaving the applicant in a state of uncertainty as to whether and when he would receive the compensation to which he was entitled. To this must be added the lack of effective domestic remedies for rectifying the situation. That state of affairs cannot be considered compatible with the State’s obligations under Article 1 of Protocol No. 1 (see Kirilova and Others, §§ 121 and 123, Antonovi, § 30, and Dichev, § 30, all cited above).

22. There has accordingly been a violation of that provision.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

23. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

24. The applicant did not petition the Court to instruct the authorities to provide him with a garage, in view of the unavailability of such properties in Sofia (see paragraph 9 above).

25. In respect of pecuniary damage the applicant claimed 20,000 euros (EUR) for the value of the garage to which he was entitled. He considered this to be a fair market price for an average garage of 20 square metres in Sofia, as exemplified by a sale offer published on the Internet and submitted by him.

26. In addition, the applicant claimed EUR 12,142 for lost opportunity on account of not being able to use the garage to which he was entitled between 1978 and 2008. In support of that claim he submitted an expert valuation concerning lost rent that had been prepared in the context of the tort proceedings against the Sofia municipality (see paragraph 10 above). He requested that the Court determine in equity the compensation due on those grounds for the period after 2008.

27. Lastly, the applicant claimed EUR 2,000 in respect of non-pecuniary damage.

28. The Government contested the claims as exaggerated.

29. As regards the damage stemming from the continuing failure of the authorities to deliver the garage due to the applicant, and taking into account the preferences expressed by him (see paragraphs 24-25 above) and the fact that the authorities have not yet adopted a decision specifying the size and location of the garage, the Court takes the view that the respondent Government must pay the applicant a sum corresponding to the current average value of a garage in Sofia. Taking into account the information available to it regarding the property market in Sofia, it assesses that value at EUR 11,000.

30. The Court finds, moreover, that it is justified to award the applicant damages for lost opportunity on account of his inability to use and enjoy the garage due to him over a substantial period of time. On this count the applicant claimed lost rent for the period from 1978 to 2008, relying on an expert report, and left it to the Court to decide on the amount to be awarded for the remaining period (see paragraph 26 above).

31. The Court observes that the “period of damage” did not start in 1978, but on 7 September 1992 when Protocol No. 1 came into force in respect of Bulgaria. In addition, in so far as the applicant claimed lost rent, it is unclear whether he or his father would have let the garage or would have used it themselves. Thirdly, the applicant or his father, respectively, would inevitably have experienced some delays in finding suitable tenants, would have incurred expenses in maintaining the property, and would have been obliged to pay tax on any rent received (see Kirilova and Others (just satisfaction), §§ 28-31, and Dichev, § 43, both cited above). Thus, having regard to the numerous imponderables involved, the Court must rule in equity and awards the applicant EUR 4,500 under the present head.

32. Lastly, in respect of non-pecuniary damage, the Court allows the applicant’s claim (see paragraph 27 above) in full, awarding him EUR 2,000.

B. Costs and expenses

33. The applicant also claimed 1,390.96 Bulgarian levs (BGN), the equivalent of EUR 710, for the costs and expenses incurred by him and his father in the domestic tort proceedings. As to the expenses incurred before the Court, he claimed BGN 14.10 (the equivalent of EUR 7) and EUR 23.64 for postage. In support of his claims he presented the relevant receipts.

34. The Government contested the claims.

35. Consideration having been given to the documents in its possession and the circumstances of the case, the Court allows the applicant’s claims in full, as all costs and expenses appear to have been actually and necessarily incurred and are reasonable as to quantum. In particular, the expenses in the domestic proceedings were incurred while the applicant and his father, respectively, sought to obtain redress for the violation of their rights found in the case. The total amount awarded under the present head is thus EUR 740.64.

C. Default interest

36. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been a violation of Article 1 of Protocol No. 1;

3. Holds

(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into Bulgarian levs at the rate applicable at the date of settlement:

(i) EUR 15,500 (fifteen thousand five hundred euros), plus any tax that may be chargeable, in respect of pecuniary damage;

(ii) EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(iii) EUR 740.64 (seven hundred and forty euros and sixty-four cents), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 24 November 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Anne-Marie Dougin Khanlar Hajiev
Acting Deputy Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> DIMITROV v. BULGARIA - 78441/11 (Judgment (Merits and Just Satisfaction) : Court (Fifth Section Committee)) [2016] ECHR 1040 (24 November 2016) URL: http://www.bailii.org/eu/cases/ECHR/2016/1040.html Cite as: CE:ECHR:2016:1124JUD007844111, [2016] ECHR 1040, ECLI:CE:ECHR:2016:1124JUD007844111